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Monday, November 01, 2004

Kerry's Discharge Is Questioned by an Ex-JAG Officer

BY THOMAS LIPSCOMB - Special to the Sun
November 1, 2004

A former officer in the Navy's Judge Advocate General Corps Reserve has built a case that Senator Kerry was other than honorably discharged from the Navy by 1975, The New York Sun has learned.

The "honorable discharge" on the Kerry Web site appears to be a Carter administration substitute for an original action expunged from Mr. Kerry's record, according to Mark Sullivan, who retired as a captain in the Navy's Judge Advocate General Corps Reserve in 2003 after 33 years of service as a judge advocate. Mr. Sullivan served in the office of the Secretary of the Navy between 1975 and 1977.

On behalf of the Kerry campaign, Michael Meehan and others have repeatedly insisted that all of Mr. Kerry's military records are on his Web site atjohnkerry.com, except for his medical records.

"If that is the case," Mr. Sullivan said, "the true story isn't what was on the Web site. It's what's missing. There should have been an honorable discharge certificate issued to Kerry in 1975,if not earlier, three years after his transfer to the Standby Reserve-Inactive."

Another retired Navy Reserve officer, who served three tours in the Navy's Bureau of Personnel, points out that there should also have been a certified letter giving Mr. Kerry a choice of a reserve reaffiliation or separation and discharge. If Mr. Meehan is correct and all the documents are indeed on the Web site, the absence of any documents from 1972 to 1978 in the posted Kerry files is a glaring hole in the record.

The applicable U.S. Navy regulation, now found at MILPERSMAN 1920-210 "Types of Discharge for Officers," lists five examples of conditions required to receive an honorable discharge certificate, four required to receive a general discharge "not of such a nature as to require discharge under conditions other than honorable," and seven for "the lowest type of separation from the naval service. It is now officially in all respects equivalent to a dishonorable discharge."

Kerry spokesmen have also repeatedly said that the senator has an honorable discharge. And there is indeed a cover letter to an honorable discharge dated February 16,1978,on the Kerry Web site. It is in form and reference to regulation exactly the same as one granted Swiftboat Veterans for Truth member Robert Shirley on March 12, 1971, during a periodic "reduction in force (RIF)" by the Naval Reserve. The only significant difference between Mr. Kerry's and Mr. Shirley's is the signature information and the dates. In a RIF, officers who no longer have skills or are of an age group the Navy wishes to keep in reserve are involuntarily separated by the Navy and given their appropriate discharge. This is a normal and ongoing activity and there is no stigma attached to it.

Kerry spokesman David Wade did not reply when asked if Mr. Kerry was other than honorably discharged before he was honorably discharged.

"Mr. Meehan may well be right and all Mr. Kerry's military records are on his Web site," Mr. Sullivan said. "Unlike en listed members, officers do not receive other than honorable, or dishonorable, certificates of discharge. To the contrary, the rule is that no certificate will be awarded to an officer separated wherever the circumstances prompting separation are not deemed consonant with traditional naval concepts of honor. The absence of an honorable discharge certificate for a separated naval officer is, therefore, a harsh and severe sanction and is, in fact, the treatment given officers who are dismissed after a general court-martial."

With the only discharge document cited by Mr. Kerry issued in 1978, three years after the last date it should have been issued, the absence of a certificate from 1975 leaves only two possibilities. Either Mr. Kerry received an "other than honorable" certificate that has been removed in a review purging it from his records, or even worse, he received no certificate at all. In both cases there would have been a loss of all of Mr. Kerry's medals and the suspension of all benefits of service.

Certainly something was wrong as early as 1973 when Mr. Kerry was applying to law school.

Mr. Kerry has said, "I applied to Harvard, Boston University, and Boston College. I was extremely late. Only BC would entertain a late application."

It is hard to see why Mr. Kerry had to file an "extremely late" application since he lost the congressional race in Lowell, Mass., the first week of November 1972 and was basically doing nothing until he entered law school the following September of 1973.A member of the Harvard Law School admissions committee recalled that the real reason Mr. Kerry was not admitted was because the committee was concerned that because Mr. Kerry had received a less than honorable discharge they were not sure he could be admitted to any state bar.

The fact that Mr. Kerry had cancelled his candidacy for a Congressional seat in 1970 in favor of Father Robert Drinan cannot have hurt Mr. Kerry's admission to Boston College. The Reverend Robert Drinan's previous position was dean of the Boston College Law School.

Given this, it is likely that a legal review took place that effectively purged Mr. Kerry's Navy files and arranged for the three-year-late honorable discharge in 1978.There were two avenues during the 1977-1978 time period. This could have been under President Carter's Executive Order 11967, under which thousands received pardons and upgrades for harsh discharges or other offenses under the Selective Service Act. Or it might have merged into efforts by the military to comply with the demands of the 1975 Church Committee. Mr. Sullivan was personally involved in the 1976 and 1977 records review answering Senator Kennedy's demands to determine the scope of any counterintelligence abuses by the military.

In the Foreign Surveillance Act of 1977, legislation introduced by Mr. Kennedy to enforce the findings of the Church Committee, there is language that literally describes the behavior of Mr. Kerry. The defined behavior that could no longer be subject to surveillance without warrants includes: "Americans having contact with foreign powers in the case of Americans who were active in the protest against U.S. involvement in Vietnam. Some of them may have attended international conferences at which there were representatives of foreign powers, as defined in the bill, or may have been directly in communication with foreign governments concerning this issue."

One of Mr. Kerry's first acts of office as he entered the Senate on January 3, 1985, was making sure what was still in the Navy files. A report was returned to Mr. Kerry by a Navy JAG on January 25, 1985, and appears on the Kerry Web site. There is an enclosure listed that may have contained a list of files, according to David Myers, the JAG who prepared it, that is not on Mr. Kerry's Web site. It could have provided an index for all of Mr. Kerry's Navy files.

All officials with knowledge of what specifically happened in Mr. Kerry's case are muzzled by the Privacy Act of 1974.The act makes it a crime for federal employees to knowingly disclose personal information or records.

Only Mr. Kerry can do that. As of this writing, Mr. Kerry has failed to sign a Standard Form 180 giving the electorate and the press access to his Navy files